“No Contemporaneous Evidence” that Clinton Administration Supported DOMA To Halt Constitutional Amendment

October 30th, 2015

In recent years, President Bill Clinton and other prominent Democrats explained that they supported the Defense of Marriage Act as a means to stop the momentum for a federal constitutional Amendment. However, in an important report from Chris Geidner, we find that there is “no contemporaneous evidence” that anyone in the administration took this view.

The threat of a federal constitutional amendment, these Democrats have argued, motivated them to support DOMA — a law that defined marriage for federal government purposes as between one man and one woman and said states could refuse to recognize same-sex couples’ marriages from others states.

“We were attempting at the time, in a very reactionary Congress,” Bill Clinton told an audience in 2009, “to head off an attempt to send a constitutional amendment banning gay marriage to the states.” Four former senators — including Tom Daschle, who madethe claim in 2011 — raised the idea in a Supreme Court brief in 2013. Clinton later cited that brief when, in a Washington Post op-ed, he called for the law he signed to be struck down by the court. Hillary Clinton just last week called her husband’s decision to sign DOMA “a defensive action.”

There is no contemporaneous evidence, however, to support the claim that the Clinton White House considered a possible federal constitutional amendment to be a concern, based on a BuzzFeed News review of the thousands of documents released earlier this year by the Clinton Presidential Library about same-sex couples’ marriage rights and the Defense of Marriage Act. In the documents, which include correspondence from a wide array of White House and Justice Department officials, no one even hints that Bill Clinton’s thinking or actions regarding DOMA were animated by the threat of a federal constitutional amendment.

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Through it all, though, no one discussing the bill in the Clinton administration — from the White House senior staff to gay staffers and their strongest allies to the press office to Justice Department lawyers — ever mentioned any concern about a federal constitutional amendment.

 

When I’ve taught Windsor, I always mention this fact as a way to credit the Clinton Administration of choosing the lesser of two evils. I don’t think I can say this anymore in class, if this was merely a post-hoc rationalization created by the Clinton spin machine.

Regardless of what they thought at the time, Bill and Hillary Clinton have explained, that like President Obama their views evolved.